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When justice and reconciliation conflict

Summary

Justice and reconciliation are fundamental religious and human values.

Sometimes there is no conflict between them.

In other situations there can be a fundamental conflict between dispensing justice and achieving reconciliation.

Failure to acknowledge this conflict, or attempting to "fudge" it, is a serious mistake.

25 January 2015

Quite often there is a conflict between different things that we value.

This applies in our daily lives, for example the conflict between having more leisure time and having a higher income. More importantly, there is often a conflict between religious and moral values. Mature individuals and mature societies acknowledge the reality of such conflicts, and seek to find ways forward that allow as much as possible of the desired values to be achieved, while recognising that conflicting values cannot all be realised in full. Immature individuals and societies simply seek to deny the existence of such conflicts between the values that they hold dear.

I recently focused on this when controversy broke out regarding the so-called "On the run" letters issued by the Labour Party administration of Tony Blair to a significant number of IRA terrorists. I recently wrote a piece about it which was published by the Conservative Home website on 15 January, and which can be read below.

Mohammed Amin: When justice and reconciliation conflict – the case of Northern Ireland

Most people have an instinctive sense of justice. Even relatively young children cry “That’s not fair!” when they suffer a perceived injustice.

Justice is one of the themes that runs through the Bible from Genesis to Revelation. Who can forget the prophet Nathan challenging King David of Israel over his wrongfully arranging the death of Uriah the Hittite? One of the 99 names of God which appears in the Quran is “The Utterly Just” (in Arabic “Al-‘Adl”).

When something unjust has happened, justice requires it to be rectified, if possible, and the perpetrator judged and punished appropriately, if possible. By its nature, the rectification of justice is backward looking; an injustice occurs and then it is rectified.

Reconciliation is different. It is inherently forward looking, seeking to address how we are going to live together harmoniously in the future.

Sometimes there is a conflict between justice and reconciliation. Because both are valued so highly, there is a strong temptation to ignore this conflict or attempt to fudge it by woolly thinking. That temptation is particularly strong when the injustice in question arises not from the actions of individuals but the actions of organised groups.

I believe two historical examples can help us think more clearly about Northern Ireland and the “On the run letters”that Tony Blair was quizzed about by the House of Commons Northern Ireland Affairs Select Committee earlier this week. His two hours of testimony can be watched at this link.

The Holocaust

The Nazi regime in Germany was utterly destroyed by its military defeat in World War 2. Afterwards those Germans who had been engaged in trying to exterminate all European Jews had no organised power.

Accordingly, there has been no impediment to the quest for justice. It is right and proper that those who perpetrated the Holocaust live in fear of arrest and punishment, and will do so until the day they die.

In this example there was no conflict between justice and reconciliation, since the organised group that had perpetrated the injustice was utterly defeated.

Apartheid South Africa

In my opinion the apartheid regime in South Africa had zero moral legitimacy since every square metre of land owned by Afrikaner and English speaking South Africans had been expropriated by force from the indigenous African population, either recently or earlier in the period of colonial settlement. With a few legal exceptions, a thief cannot give proper title even to an innocent purchaser, so even recent innocent purchasers of land in South Africa were occupiers of stolen property.

Consequently in my view the insurrection led by the ANC was a legitimate war of independence and morally just. Conversely the armed forces of apartheid South Africa were unjust oppressors, and all actions carried out by them therefore inherently unjust.

However the apartheid regime would never have agreed to dissolve itself if white South Africans were then going to lose what they regarded as their land. Similarly, if those who had served in the security forces of apartheid South Africa were going to be pursued for having defended their state, they would never have laid down their arms.

It would certainly have been impossible to forge a united society of black and white South Africans if the requirements of justice had been pursued. Indeed any attempt to do so would almost certainly have resulted in a collapse of the South African economy, and very probably in a massive bloodbath. Although numerically inferior, the greater military power of the Apartheid regime (believed to surreptitiously possess nuclear weapons) might have allowed it to defeat the war of liberation, but most probably in the form of a pyrrhic victory.

Accordingly, this was a case where there was a fundamental conflict between justice and reconciliation.

In my opinion, Nelson Mandela took the right decision by prioritising reconciliation. The “truth and reconciliation commission” provided a process for people to confess what they had done and in return receive absolution in the form of freedom from prosecution. White South Africans were also left with ownership of “their” land, both to enable reconciliation and to avoid the economy collapsing completely which would have helped nobody in South Africa.

Northern Ireland

“The troubles” were a conflict between a number of organised groups, some on the Nationalist side and some on the Unionist side. (Depending on your viewpoint, the British Army was either a third side or part of the Unionist side.) Neither was able to defeat the other completely, so it was necessary to end the conflict by negotiation. John Major deserves great credit for starting that process while prime minister, and Tony Blair for taking it to a conclusion.

Unfortunately, Blair considered it necessary to fudge the question of those who had committed crimes during the troubles but who had not been arrested, tried, convicted and jailed. (Those who had been jailed were let out early.) I presume that he considered that the Unionists would not have agreed to a South African style truth and reconciliation commission, which is clearly what should have been done.

Instead the now infamous “On the run” letters were issued to non-arrested suspects, where the prosecuting authorities considered that, at that time, they did not have enough evidence to mount a prosecution that was likely to succeed. I believe the letters left open the possibility of prosecution if additional evidence became available. One such letter was wrongly issued to John Downey, a suspect in the 1982 IRA bombing in Hyde Park, which left four soldiers dead. It was wrongly issued because the authorities considered that they did have sufficient evidence to prosecute him.

When Downey was recently arrested and tried, after the existence of his letter came to light, the judge said that despite his letter being wrongly issued it offended the “court’s sense of justice and propriety” to now try the defendant.

I believe that it was a mistake by Blair to fudge this issue during the Good Friday negotiations. Even at this late stage, I believe that either the Northern Ireland parties should set up a truth and reconciliation commission, or else the UK Parliament should use its powers to override the devolution settlement by legislating for all crimes committed for political purposes (to be appropriately defined) as part of the troubles to no longer be prosecutable.

This is a case where the requirements of reconciliation outweigh the pursuit of justice.

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